The result of the order is a husband has to pay maintenance arrears 29 years after he got divorced. The arrears run into more than R3 million. While Simon Arcus did not dispute the fact he was in arrears, he said the maintenance order he agreed to when he and his wife Jill divorced in 1993 had lapsed after three years. Under the agreement, Simon had to pay Jill monthly maintenance until she died or remarried. He also had to pay maintenance towards his two children until they became self-supportive. One became self-supportive in 2002 and the other in 2005.

Although her husband failed to pay the maintenance stipulated in the agreement, Jill did not take steps to recover the arrears, until December 2018, when she instructed her attorneys to send a letter of demand to her former husband. Notwithstanding the demand, he failed to pay the arrears but began paying the monthly maintenance due to her from only January 2019. A few months later, he lodged an application in the maintenance court for the retrospective discharge of his maintenance obligations. That application is pending. Jill had meanwhile instructed her lawyers to issue a writ of execution against her former husband, to have his assets sold so she could recover the R3.5m he owed her. Simon turned to the Western Cape High Court, where he asked for a stay of the writ of execution.

He also applied for an order declaring that his maintenance obligations had lapsed or expired. The Western Cape High Court ruled against him. It found that an order for maintenance was not an ordinary debt under the Prescription Act. A maintenance order was in fact a judgment debt that lapsed after 30 years. Simon then turned to the appeal court. He said that maintenance orders expired within three years if they were not in the meantime altered or changed.

According to his reasoning, a maintenance order could not constitute a final judgment as the orders could be changed from time to time. Thus, he reasoned, debts that arise from maintenance orders could not be regarded as “ judgment debts”. The majority judgment (three judges), written by Acting Justice John Smith, found a maintenance order had the same legal consequence that flowed from an order made in a civil action. It was said a maintenance order fixed the obligations of the judgment debtor until such time as it was discharged or varied on new facts.

Thus, it remained in place for 30 years – even if payment is not enforced in the meantime. While all five justices of the Supreme Court came to the same conclusion, two of them wrote a separate, concurring judgment, citing other reasons as well why maintenance orders remained in place for 30 years. They reasoned if the husband’s reasoning – that these judgments lapsed within three years if they were not enforced – was to be accepted, it would perpetuate the hardships suffered by the most vulnerable groups in society: women and children.

This, they reasoned, was so because at the core of the maintenance act was to provide for a fair recovery of maintenance money and to avoid failures to enforce maintenance orders. Justice Baratang Mocumie and Acting Justice Kgoele said if the husband’s reasoning was accepted, it would “definitely cause hardship to the maintenance creditors as they will be compelled to approach the courts every three years to enforce their claims to avoid prescription”.